from the harder-than-they-thought dept

Expresses, while confirming its ongoing support for transatlantic efforts in the fight against terrorism and organised crime, serious concern over PRISM and other such programmes, since, should the information available up to now be confirmed, they may entail a serious violation of the fundamental right of EU citizens and residents to privacy and data protection, as well as of the right to private and family life, the confidentiality of communications, the presumption of innocence, freedom of expression, freedom of information, and the freedom to conduct business

But instead of postponing the imminent TAFTA/TTIP negotations, as some MEPs had called for, it limited itself to the following rather feeble action:

Instructs its Committee on Civil Liberties, Justice and Home Affairs to conduct an in-depth inquiry into the matter in collaboration with national parliaments and the EU-US expert group set up by the Commission and to report back by the end of the year

And so the TAFTA/TTIP talks will go ahead as planned. We already knew roughly what will be discussed during those negotiations, but no details. That's now changed, thanks to the Institute for Agriculture and Trade Policy getting hold of the European Commission's initial position papers on TAFTA/TTIP. These aren't exactly top secret -- the US side will receive a copy ahead of the first round of talks -- but they wouldn't normally have been released, and so they offer a unique opportunity to see the thinking here, at least from the EU side.

In essence, the 65-page document tries to flesh out the general idea of "promoting regulatory compatibility/convergence", which is supposed to deliver all those benefits that TAFTA/TTIP advocates have been touting. But once you get down to the nitty-gritty, as revealed by the papers, things turn out to be rather more difficult. The biggest problem, noted by many commentators, is that there aren't really many trade barriers that can be removed, because trade is already pretty free between the US and EU. That throws the emphasis on non-trade barriers -- things like differing local standards that make it hard to sell the same product in both the US and EU.

But as the position paper makes clear, it's going to be extremely challenging bringing these into line. In some areas, that's because the approaches of the two sides are so different as to be totally incompatible. That's the case for chemicals, for example, as the document itself admits:

Both industry associations and governments are aware that neither full harmonisation nor mutual recognition seem feasible on the basis of the existing framework legislations in the US and EU: REACH (Regulation (EC) 1907/2006) and TSCA (Toxic Substances Control Act) are too different with regard to some fundamental principles.

The best that EU advisers can come up with is the idea of "Promoting alignment in classification and labelling of chemicals", which is hardly going to generate billions of extra trade activity.

There's more scope for compatibility in the area of pharmaceuticals, but even here among the relatively few options are things like "allowing the exchange of confidential information and trade secret information between EU Member States/EU institutions and FDA." Of course, that could be achieved more easily by making all key health and safety data for drugs freely available, as the AllTrials campaign is seeking to bring about.

The really revealing section concerns "SPS" -- "sanitary and phytosanitary" issues. Behind that rather mysterious name lies a huge range of economic activity, including agriculture and food. And that, of course, means GM organisms -- already flagged up as one of the key areas that is likely to be problematic. That's because former USTR Ron Kirk stated quite bluntly:

"For us, everything is on the table, across all sectors, including across the agricultural sector, whether it is GMOs or other issues," Kirk said.

Basic laws, like those relating to GMOs or which are there to protect human life and health, animal health and welfare, or environment and consumer interests will not be part of the negotiations.

However, the policy paper does contain a few hints about how that apparent contradiction might be resolved, such as the following:

This chapter -- as part of the FTA discussions within the TTIP -- will seek to build upon the key principles of the World Trade Organization (WTO) SPS Agreement, including the requirements that each side's SPS measures be based on science

Underlying these cross-cutting SPS trade barriers (and many of the other unwarranted SPS barriers described in section IV) is the disturbingly common failure by some U.S. Trading partners to base their SPS measures on science

The inclusion of this phrase in the European Commission's position paper looks like a signal to the US side that it will cave on GM foods if the "based on science" argument is invoked as a justification -- after all, no reasonable person could be against science, could they? That readiness to capitulate seems to be confirmed by another carefully-chosen phrase later on, in a section headed "Marking and labelling" where we read:

consideration should be given to measures to inhibit the use of markings that may mislead consumers

Proponents of the California labeling proposal are misleading people about the safety of food in the marketplace, and their opinions are in stark contrast with leading health associations and government agencies.

"Misleading" here actually means "telling people the facts about what their food contains", and the appearance of this particular phrase in the EU document suggests that the European Commission is willing to allow companies like Monsanto to use the same loaded term to fight GM labelling in Europe too once TAFTA/TTIP comes into force. Presumably this will be offered as a concession in return for other items that are more important to the Commission than preserving European citizens' right to know what is in their food.

Aside from these subtle signals, the other striking element in the document is the constant insistence on transparency, as here, for example:

The EU considers that transparency and predictability of the regulatory and standard-setting process is key to trade and growth in general.

For negotiations that are taking place behind closed doors, with no chance for citizens to follow what's going on, or to offer input, that's deeply ironic, of course. We're fortunate that there are civic-minded people with access to TAFTA/TTIP documents who are prepared to leak them so that we can see some of what is going on. Let's hope the example of Ed Snowden inspires more such leaks, since there seems precious little hope of the EU or US publishing those documents, or treating the 800 million-strong public they purport to represent with anything but arrogance and contempt in this regard.

from the they're-right!-IP-law-DOES-promote-innovation! dept

The streaming video experience on many mobile phone networks frequently flat out sucks. A YouTube video that would never trouble your home wi-fi connection sputters to a near halt before dividing its time between buffering and coughing up bursts of unsynched video and sound. And while having Netflix available on your phone seems to be a technological marvel, it's pretty useless in the wild. Plus, many phone data plans have been capped at very low levels, making streaming a full movie potentially very expensive.

Thanks to the entertainment industry, you can't even temporarily download a streamed movie to watch it later in order to bypass lousy connection speeds or data overages. This includes streaming services where the buffet pricing allows you to watch the same movie dozens of times consecutively, if that's your thing. A buffered copy is an infringing copy (in their eyes, but not a key court's), even if the temporary file deletes itself after consumption. The entities behind the TPP push are still hoping to subject buffered copies to licensing, even though the key Cablevision ruling in the 2nd Circuit said that such copies are not infringing.

As it stands now, the entertainment industry is unable to set up its toll booth on buffer copies, but that hasn't stopped it from trying. Between the ongoing push for buffer licenses and differing IP laws in various countries, providers of streaming services have played it safe by not offering a "download and view later" option. Even a self-deleting, single use file would be considered a violation of copyright law.

Streamloading is Dr. Panwar's term for his new fusion of streaming and downloading. He hopes it will help wireless carriers get more mileage out of their bandwidth, while also helping data consumers watch more videos on the go.

The technology works by bisecting video into two layers. First is a base layer, which streams during viewing, then there would be a higher layer, which the user would pre-download from some high-bandwidth location like the home or office. While the higher layer would be useless on its own, and thus in compliance with intellectual property laws whose aim is to prevent free sharing, it would nonetheless comprise about 3/4ths of the total data.

Because the streamed base layer would be necessary to unlock the viewing experience while still constituting only about 1/4th of the data, effective and lawful streaming on the go would require fairly low bandwidths. The low bandwidth required to stream the content would mean that data-heavy movies and TV shows would be watchable on your phone even in zones of spotty coverage.

It seems to be a rather elegant solution and one that you would hope would satisfy rights holders. Of course, we've seen the entertainment industry throw the brakes on other technological advancements, especially if it sees the new innovation to be potentially pirateable and short a toll booth or two. See also the ongoing Aereo battle, in which TV broadcasters have claimed the very inelegant process deployed by Aereo (in order to comply with every possibly applicable section of copyright law) is actually evidence that Aereo's service is infringing. Checking and double-checking your processes against IP law only gets you so far. After that, you're subject to the entertainment industry's version of the "heckler's veto."

Panwar has high hopes for this process, which would operate in an area still untested by copyright law. It looks like a win for consumers and possibly even streaming services, but I'm not sure wireless providers will like it as much as Panwar believes they will.

I see this as a triple win scenario. Carriers are facing a bandwidth crunch. The 4G LTE systems are not keeping up with demand for data. AT&T has said publicly that they might run out of capacity this year. A crude way for them to control demand is to raise data charges, which would drive away customers. Anything delivering quality data at a lower cost is good for the carriers. That's the first win.

Carriers may talk a lot about "bandwidth crunches" and "data hogs," but it's all just a sales pitch with slightly apocalyptic undertones ("running out of capacity;" "stressing our infrastructure") designed to keep customers strapped into low limit data plans with high overage fees. It's been basically a way to print money from day one. Finding a way to move less data over their networks will make you a friend of the people, but wireless providers' reactions will range from indifferent to antagonistic as a more efficient process cuts into their cash cows. About the only way to sell them on this is to tie the delivery system exclusively to one of their favored, net-neutrality-violating services and portals so they can deliver "preferred" data without further taxing their undertaxed infrastructure. "Delivering data at a lower cost" has been going on for years, even as service prices continue to increase.

Other than that, the process looks like it could make mobile video streaming a rather enjoyable experience, rather than a tedious near-slideshow that sucks for everyone involved but your wireless provider.

from the urls-we-dig-up dept

Asiana Airlines Flight 214 crashed at SFO last weekend, and plenty of people were glued to the TV to find out what happened and why. While the NTSB (National Traffic Safety Board) investigation will likely take weeks or months to come to final conclusions, there were plenty of citizen journalists to augment the 24hr-news cycle. Here are just a few informative examples of traditional media and social media coverage of this tragic accident.

from the not-a-good-idea dept

Last week, we wrote about a bunch of the members of Team Prenda submitting separate filings with Judge Otis Wright, who has been the most vocal in calling them out for their questionable legal shenanigans, trying (once again) to go on the offense and accuse their accusers. John Steele, Paul Hansmeier, Peter Hansmeier and Mark Lutz all filed motions claiming that the lawyers representing the John Doe defendant in the case, Morgan Pietz and Nick Ranallo, had failed to serve each of them with updated filings concerning the case. Incredibly, they tried to suggest that it was Pietz and Ranallo who were acting fraudulently and should be sanctioned. It's the classic John Steele move of "I know you are, but what am I" any time anyone calls him on his activities.

Pietz and Ranallo, having now been ridiculously accused of fraudulent activity, have hired another lawyer, Lawrence Heller, to represent them on this silly tangent, and Heller submitted quite a response, focused on John Steele's motion. The filings from the other three are dismissed in a footnote:

Mark Lutz, Paul Hansmeier and Peter Hansmeier have filed what they call "Notices to the Court," which are unsworn pleadings which attempt to evidence that they have not received certain pleadings since going pro se. Among numerous other defects, these "Notices" are neither verified, nor sworn under penalty of perjury and, to the extent they have any evidentiary value at all, should be struck or at least wholly ignored.

But the arguments against Steele's filing are much more serious. As you may recall, this was actually Steele's second attempt at making this argument, with the first one getting rejected by Judge Wright in less than an hour. The claims that Steele and the others were somehow taken by surprise by the filings in this case and were unaware of them are hard to support, and Heller makes that point excessively clear. First, Heller points out that Steele's claim that Pietz and Ranallo had submitted "scores of papers" without serving him, and that those papers were "requests for relief" was entirely bogus. Steele was represented by counsel for quite some time, and after he went pro se (representing himself) Pietz and Ranallo had only filed two documents, both merely opposing specific motions from Team Prenda.

Furthermore, Heller points out that the only one actually violating the court's rules are the members of Team Prenda who failed to properly notify a change in contact information, leading to the lack of direct service. Most seriously, Heller says that the email "evidence" that Steele submitted with his filing, which he claims is "proof" that Pietz knew he wasn't serving Steele, has been doctored. And, finally, Heller points out that this all just seems par for the course for Team Prenda in playing word games rather than facing up to the fact that they're in deep trouble:

Although already sanctioned by this court, it is clear that neither Steele nor his contingent have learned their lesson. As frivolous as Steele's motion is, Pietz and Ranallo were compelled to retain outside counsel to defend it. Pietz and Ranallo should be compensated for having to respond to this baseless motion through the court's issuance, on its own initiatve, of an OSC re: Sanctions or, alternatively, through the court's setting of a hearing date for Pietz and Ranallo to have their Rule 11 sanctions motion heard...

It must be said: finally, enough is enough!

As for Steele's "evidence," Heller points out, as is clear from the email itself, that rather than an admission of a failure on the part of Pietz, Pietz's email is actually an attempt to stop Steele from avoiding service, by noting that Pietz is happy to send Steele copies of the filing, by whatever means are most appropriate -- and that this wouldn't have been an issue if Steele had properly kept everyone informed of his correct contact information, as is clearly required by the court. Separately, they point out that plenty of evidence, including some submitted by Steele himself has clearly established what his email address is, which is also where Pietz sent copies of the filings that Steele claims were never given to him.

Moreover, Steele himself has submitted evidence to this Court definitively establishing
that he maintains at least the email address: johnlsteele@gmail.com. Specifically, in his
"Amended" Motion For Reconsideration (ECF No. 205, pp. 6-7), Steele for, the first time
attaches as Exhibit 1 the email which be omitted from the original Motion for Reconsideration
(ECF No. 201), and which he swears, under penalty of perjury, that he received at the said email
address. Steele's submission of the June 23rd email confirms that he does in fact have an
email account he has used recently, and that he is therefore in violation of L.R. 41-6 and L.R.
83-2.4, for failing to provide that email address to the Court and to all parties. Similarly, Steele's
Illinois ARDC page lists a phone number; so he has one of those too, which he has also
neglected to provide to the Court or the parties. There can be little doubt that he also has a fax
number he failed to disclose. In View of Steele's violations of the local rule designed to facilitate
service of process, the instant motion is clearly brought in bad faith.

And then we get to the funny stuff. The email "evidence" that Steele submitted to the court was an email that Pietz sent, but when he sent it, it bounced back, saying that there was no such email address. That leads to one of two possibilities, neither of which look good for Steele:

In view of Mr. Steele's sworn assertion that he actually did receive the June 23rd email
from Pietz, it is thus surprising that the email in question, which was sent to
immediately bounced back to sender from that address. (See Pietz
Dec'l., Exhibit 1). In light of the bounce-back, there are only two possibilities: either Steele
has somehow configured his Gmail account to automatically respond with false "Delivery to the
following recipient failed permanently" messages to all emails he receives, even though he
actually does receive the messages; or (ii) as seems more probable, Steele did not receive the
June 23rd email directly, but rather it was forwarded to him by one of his cronies who was also
included on Pietz's email chain. A close look at the top of Steele's Exhibit A shows partial text
remnants. Moreover, the email is of an abnormally small size. Both of these facts strongly
suggest that a header has been cutoff at the top of the email to conceal how it was received. It
seems apparent that Steele has purposefully omitted an email header, which would presumably
show one of his co-conspirators forwarding the June 23rd message from Pietz to whatever new
email address Steele is using nowadays.

Since Steele's motion, as well as his sworn affidavit, tacitly rely upon the premise that
he has not been in close contact with Paul Hansmeier, Paul Duffy, and counsel for Prenda Law,
Inc., about the bond issue since going pro se, one can certainly understand why he may have
been tempted to cut out the header showing him communicating with these people. In other
words, in what would seem to be a truly staggering--and foolish--bit of chutzpah, Steele
appears to have once again tried to slip a doctored document past this Court in the hopes of
getting his way.

Further, given that the johnlsteele@gmail.com email address was used by "someone" to
register certain Internet domain names to "Alan Cooper" at a Phoenix residence where Steele's
sister lived with Anthony Saltmarsh, there can be little question as to why Steele might have
been tempted to discontinue using that account. Using that email address potentially links Steele
to criminal identity theft activity. However, thanks to his recent filing. Mr. Steele has now
sworn under penalty of perjury, that he has recently received email sent to johnlsteele@gmail.com
even though that may be perjury.

You get the feeling that John Steele is stupendously bad at chess, while simultaneously believing that he could beat Kasparov and Deep Blue in concurrent matches. The more he talks, each time believing he's found the magic "out," the deeper he seems to dig his own hole. This is a different kind of digging than, say, a Charles Carreon, who would just keep fighting. Steele acts as if he really thinks that he has the whole system beat, when the reality is each time he tries to "beat" the system, he's just piling up another potential problem for himself.

For example, there's also more evidence that Steele is making claims to the court that are not just bogus, but where Steele's own actions show that they are bogus:

However, through what may have been an inadvertent slip-up, there is compelling
evidence that Steele was actually aware, or should have been aware of ECF No. 175 (Pietz's
opposition to Duffy's motion to approve the initial bond) since at least June 14, 2013. On May
23, 2013, Paul Duffy filed his motion to have the bond he posted on behalf of all Prenda parties
other than Gibbs approved by this Court (ECF No. 171). On June 3, 2013, Pietz filed a
response asking that the bond be conditionally approved, subject to certain conditions, and
subject to the posting ofan additional bond (ECF No. 175). It is this document, ECF No. 175,
from early June, which Steele would later say he was denied an opportunity to respond to. On
June 6, 2013, the Court entered the proposed order submitted with the response, conditionally
approving the bond, as requested by Pietz (ECF No. 176). On June I 1, 2013, Prenda Law, Inc.
through associate Philip Vineyard of the Kleindinst Firm, announced by email to all parties
(including to johnlsteele@gmail.com) that they would be appealing the Court's order on the
bond (i.e., appealing ECF No. 176) and filing an emergency motion seeking relief from the Ninth
Circuit on that issue. (Pietz Dec'l., Exhibit B.)

By itself, the email from Philip Vineyard to Steele et al. Would have been sufficient to
put Steele on notice of the fact that proceedings were underway in the District Court on the bond
issue. See id. at pp. 1-2. The fact that Prenda was appealing the issue would also have put Steele
on notice that the bond proceedings had not gone as his similarly situated counterparts may have
hoped. However, that is not all that happens on the email thread.

On June 14, 2013, at 9:54 AM, Mr. Vineyard circulated to all parties what he styled a
"pre-executed version of Prenda Law's emergency motion to the Ninth Circuit" on the bond
issue. Id. at. p. 11

About a half hour later, at 10:20 AM, John Steele wrote back to Mr. Vineyard, copying
Pietz, saying,

"Philip,
Great motion. On page 5, I want to take issue with the bottom of the page, right
before footnote 23. No one that I am aware of (on our side) stated that Prenda or
anyone else had a policy of demanding a settlement amount just low enough to
avoid legal action. This is something the bad guys always claim." Id. at 14.

Vineyard then wrote back a few minutes later saying "Thanks, John. I shall amend the
motion to reflect this." Both the "pre-execution" version Vineyard circulated,
which Steele apparently reviewed and provided guidance on, as well as the final version
ultimately filed with the Ninth Circuit, extensively discuss Pietz's opposition to Duffy's motion
to the approve the bond (ECF No. 175). Clearly, Steele reviewed Vineyards motion on June
14, 2013, and Vineyard's motion discusses at length the opposition (i.e., ECF No. 175) to which
Steele states he was denied an opportunity to respond because he was unaware of it. There can
be no question that Steele had every opportunity to respond to Pietz's opposition, despite his
false claims, which form the basis of his motion, to the contrary.

Further, Steele has known that there would be a dispute about the amount and conditions
of the bond since at least May 20, 2013. See ECF No. 175-2, pp. 1-5 (meet and confer email
from Pietz to Prenda parties, including to johnlsteele@gmail.com, which was ignored by all of
them, except for some nonsensical ramblings from Mr. Duffy).

In view of all this evidence, it seems that Steele was just about as "shocked" about the
bond issue before this Court as Captain Renault was to find that gambling was going on at
Rick's Cafe Americain.

Here's a basic tip: if you're going to claim to a court that you have no idea certain documents are being filed, probably don't (a) use the same email address that the very same documents were mailed to and (b) don't send the counsel you're accusing of not informing you of documents filed in the very case in question -- that you insist you're not paying attention to -- email evidence that you're not only very much paying attention, but actively involved in the drafting, review and approval of filings in the case.

In a footnote, the filing also notes that this is more evidence that Steele has a leading role in Team Prenda's legal strategy, despite his claims to have absolutely nothing to do with any of it:

This obviously begs the question of why counsel for Prenda Law, Inc., whose "sole principal" is supposedly Paul Duffy is taking their marching orders from Steele, a party with which Prenda likely has a conflict (particularly in view of Hansmeier's deposition testimony that obtaining the Alan Cooper signatures was all Steele's doing).

from the intellectual-property-reichs dept

We've had dust-ups in the restaurant industry over trademarks before. Whether it was Psy vs. Gangnam Style Restaurant, which turned out to be a nothing, Nutella vs. restaurants promoting their products, or Waffle House vs. rap music, the conflict is there, but I feel like it lacks a certain gravitas. A little of what the French call je ne sais quoi. The closest we've come to anything satisfying was IHOP vs. God, but I'm going to disqualify that one for being outside the mortal coil (side note: Heavenly Coil would be a great name for a punk band or strip club). Fortunately, we've finally got a trademark dispute with some real personalities. Two titans on the world stage that the cameras can do close-ups on as they battle this out.

I'm of course talking about the potential for a legal battle between Colonel Sanders and Adolf Hitler. Some brief background is probably in order. See, apparently there's something of a trend in Thailand for taking well-known cultural icons and changing their images just enough to represent history's most dasterdly megalomaniac. As a result, you'll get teletubbies with Hitler's face on them, or a cute little panda with a toothbrush mustache and a glare that says, "Those bamboo stalks better not be Jewish." And the latest victim of this Hitler-ization is of the KFC spokesman.

Kentucky Fried Chicken told The Huffington Post Friday it may take "legal action" against a fried chicken shop named Hitler that sports a storefront emblem very similar to KFC's, only with Adolf Hitler's head replacing Colonel Sanders.

"We find it extremely distasteful and are considering legal action since it is an infringement of our brand trademark and has nothing to do with us," a spokesman for KFC parent Yum! told The Huffington Post in an email.

Look, I can't blame KFC for being upset that their beloved Colonel Sanders was morphed into Hitler. Adolf Hitler murdered roughly 11 or 12 million people in one of the world's greatest travesties. The Colonel only kills chickens, people. Delicious, succulent, chickens. So if KFC wants to go the trans-oceanic trademark route, it may be hard to blame them, but how much of an effect would it actually have?

As it turns out, a mild-flavored recipe effect at best. In order to avoid criticism of the same kind a couple of years back, the restaurant changed its facade, name, and shop images a bit. Now, instead of being called Hitler's Chicken, the name has reportedly been changed to H-ler, because that's apparently better. Also, it looks as though the Hitler image has been removed. Not that this is erasing anyone's memory, of course. People pass that shop every day and know it was Hitler's Chicken. Nobody ever confused Hitler with Colonel Sanders and nobody ever actually thought less of KFC or their trademark because of the stunt.

You can understand why KFC was upset, but it's hard not to see the futulity in all this. KFC may not have realized at first that the images of a Hitler Colonel were a year or so old, but this can serve as a lesson in how the market and society will usually do all the legal work for you if you give them enough time and spotlights.

from the go-go-bananas dept

There must be something about the band Queen that makes people go IP crazy. A while back was the hilarious news about a drunk Canadian singing Bohemian Rhapsody, with EMI taking the video down before relenting amid the backlash. How could you get more bizarre than that, right? Well, first you'd have to come up with two unrelated charities, the only common denominator being that each has something to do with the band Queen. Then you'd have to introduce a fiberglass gorilla painted to look like Freddie Mercury, long-dead lead singer of the band. Finally, you'd have to make sure that said Freddie Mercury gorilla was removed from public view over a copyright claim.

Look, I know what you're thinking. No way did a Freddie Mercury gorilla get removed via a copyright claim. Didn't happen, you're thinking. Couldn't happen. Sorry, folks, it happened -- whether or not the copyright is valid. At the very least, the threat of copyright action has resulted in the removal of the gorilla.

Mercury Phoenix Trust contacted Wild in Art, the company that supplied the gorilla glass-fibre canvases, according to director Charlie Langhorne.

"They just said that they own the copyright on the suit and asked us to change it," Mr Langhorne said. "That's being sorted. To save any bother we will change it."

Mercury Phoenix Trust is an AIDS charity constructed in the name of Freddie Mercury, who died of the disease. Go Go Gorillas, the charity that commissioned the Mercury gorilla, is supported by Brian May, former guitarist for Queen. Go Go Gorillas is running the gorilla campaign to raise awareness and funds for conservation efforts in the Congo. All laudable goals made petty via the use of copyright laws to take down the Freddie Mercury gorilla and replace it with a newly painted version.

Whether or not there's a legitimate copyright claim in the "jacket" from Mercury Phoenix Trust seems like an open question (and it's pretty easy to argue that the copyright claim is highly questionable). But, really, does that even matter when the mere threat of a copyright claim is enough to have the statue pulled?

The whole situation seems rather ridiculous.

Martin Green of Break, one of two charities that will benefit from the auction of the gorillas once the exhibition is over, said: "It's a disappointing position they have put us in.

"Freddie is one of our most popular gorillas on the trail and now we've got to remove him from the streets, but we're respecting the wishes of another charity."

So thanks a lot, copyright. You've been used as a pawn in a needless battle between two charities with far greater work to do, all the while depriving me of a gorilla that looks like it's about to sing We Will Rock You to anyone within listening distance. Personally, I can't think of a greater crime against humanity.

The TSA has launched an Instagram account, showing all the "dangerous items" they steal confiscate from air travellers. The message is clear: we are keeping you safe from in-flight danger.

But what they don't show is all the grand-jury indictments for conspiracy to commit air terrorism that they secured after catching people with these items -- even the people who were packing guns.

That's because no one -- not the TSA, not the DAs, not the DHS -- believe that anyone who tries to board a plane with a dangerous item is actually planning on doing anything bad with them. After all, as New York State chief judge Sol Wachtler said (quoting Tom Wolfe), "a grand jury would 'indict a ham sandwich,' if that's what you wanted." So if there was any question about someone thinking of hurting a plane, you'd expect to see indictments.

This is undeniable. If attempting to carry a weapon onboard is evidence of a true threat, we'd expect to see more would-be fliers headed off to prison, or at least arraigned on terrorism charges. But that's simply not happening. Instead, the weapons are confiscated and they face, at most, a felony charge for attempting to board a plane with a weapon.

This sort of thinking falls right in line with the TSA's liquids policy. Prohibited liquids are tossed into nearby trash receptacles, giving lie to the reasoning that the questionable liquid could be some sort of explosive. Throwing away potential bomb components a few feet from a frequently-crowded TSA checkpoint right on the concourse seems incredibly irresponsible if you truly believe the fluid is dangerous. The fact that this happens several times a day in hundreds of airports across the US proves that not even the TSA agents believe the confiscated liquids pose a threat.

The TSA agent Doctorow spoke with about these seizures said he didn't believe the people who'd had their weapons confiscated posed a threat. But he did come up with a rather novel theory as to why these confiscations took place.

"But," he said, "maybe someone who did want to crash the plane might take the bad thing away from them and attack it."

Doctorow responded that this scenario seemed way too far-fetched to mesh with reality.

"That doesn't sound like a very reliable plan," I said. "If you were a terrorist and that was your plan, you'd have to spend a lot of time in the air waiting for someone to open his laptop bag and show you that he forgot to take his handgun out of it before he boarded."

Based on recent history with would be terrorists, it's more likely the smuggled weapon would be used by passengers against the terrorists, rather than the other way around. This new Instagram account is just the TSA soft-selling its brand of "safety," but the implied narrative doesn't hold up to scrutiny.

from the some-metrics dept

On a recent episode of Jerry Brito's Surprisingly Free podcast, he had on economist Alex Tabarrok who recently released a Kindle short, called Launching the Innovation Renaissance: A New Path to Bring Smart Ideas to Market Fast. Part of the key argument in the book is that through bad policy, we've really held back the pace of innovation. This is something we've pointed out before, but Tabarrok has some data to back it up. One of the most frustrating things for us has been how many reports use patents as a proxy for innovation, even as many studies have shown no correlation between patents and actual innovation. In this book, Tabarrok, smartly, looks at the growth rate in Total Factor Productivity -- which is a measure of output that comes from "non-traditional" inputs -- i.e., output created directly from land or capital. This is a reasonable way of measuring the impact of technological improvement.

It's important to understand this, so let's take a step back to explain it a little more clearly. Economic growth comes from the ability to get more out of the same amount (or even better, getting more from less). Straight output increases can come just from increasing capital or increasing labor, but you're not expanding the overall pie. Actually creating economic growth -- providing more than was possible before -- comes from knowledge and ideas being applied to various problems. Knowledge and ideas can effectively create something from nothing, or create something more from something less. Greater and greater efficiency can be driven by smart ideas over time (mass production, automation, computerization, etc.), allowing for economic growth and the ability to create some amazing new things and expand the economy.

Total Factor Productivity is effectively measuring this point: how much are we getting from the factors of production. Over time, Total Factor Productivity should continue to rise, as we improve efficiency and create new things and generally grow the overall pie. But it's the rate of growth that is most important in determining if we're growing at an optimal pace. If the rate of growth of TFP is slowing, then that suggests something is getting in the way: and that's exactly what Tabarrok is talking about. Over the last few decades, rather than expanding, the growth rate for TFP has been declining. Innovation is still happening, and we're still growing the economy, but not at the same pace as in the past, and that's a problem, since normally we should see the rate of growth increase as well.

In short, as Tabarrok points out, we're seeing important growth and innovation happening later than it likely would have otherwise, if current policies weren't holding back economic advancement. He notes that if the pace of growth in TFP had continued at the rate it had in the two decades after World War II, we'd be living in a world of innovations from 2076, rather than what we have today. In other words, the pace of innovation has slowed down so much in the last 40 years, that it will take another 65 years or so just to get to where we should be today. That's terrible.

Among the things to blame? Obviously: the patent system is at the top of the list. We've certainly been down this road before, but Tabarrok hits on many of the points we have concerning how patents hinder the pace of innovation. As you may recall, a few months ago he actually put together a nice video on the topic as well. The key point: patents serve to make follow-on innovation much more expensive, and follow-on innovation is often key to continued productivity gains.

Brito asks him about one of the key retorts we often hear, noting that we do see plenty of innovation, and even the areas where there are the biggest patent fights, such as the smartphone patent wars, involve a bunch of companies -- mainly (though not entirely) in the US, leading the innovation. Tabarrok points out that, again, the real issue here is the rate of growth, not the fact that there is innovation happening:

You have to think about where is innovation most likely to be slowed by the patents. And it's actually in a field in which the natural rate is quite high. Suppose we have a field where the natural rate of progress is low and something is patented. Well, since the rate of progress is low, you're not raising the cost to future innovators very much, because they were going to wait anyway, because there wasn't much to build upon. So industries where you're not building on top of other innovations, where you don't have cumulative innovation, then a strong patent is not going to do very much. It's not going to slow things down.

It's precisely the areas in which there's lots of innovation, where you're building on previous innovations and things are moving rapidly, that the patent does slow things down. So, yes, it's true that the smartphone industry is innovating, rapidly. But it's my belief that they're innovating less rapidly than they otherwise would. And it's precisely in fields that are innovating rapidly that you expect patents to have the worst effects.

This a key point that is all too frequently misunderstood by patent system supporters. Even in the US government, where we've pointed out that they use incredibly simple claims of correlation, like Steve Jobs getting patents as proof of a patent system working. But that has nothing to do with the pace of innovation. It's that second-order number that is what is actually important in determining if we have the most effective policy. It's honestly tragic how few people understand the importance in understanding the rate of change in something, rather than its absolute rate in looking at the impact, and it's that failure to understand this (don't we teach calculus any more?) that has resulted in some really bad policy decisions.

Tabarrok discusses the patent nuclear war in the smartphone space and points out, as we have in the past, that it has nothing to do with innovation at all, but is just moving money around, mostly to lawyers. Even worse, he notes that the truly disruptive and breakthrough innovations tend to come from outside the big mainstream players, but rather from small upstarts coming out of left field -- but in a heavily patented area, those players don't stand a chance, and those breakthrough, epoch-defining innovations that move the entire state of the art vastly forward, die an untimely death, often before ever seeing the light of day. As he notes, those innovations get killed in a court of law, rather in the marketplace, which is terrible for innovation.

In terms of solutions to this issue, Tabarrok suggests getting rid of software patents first of all. Also, he suggests different patent lengths for different types of inventions, with shorter inventions for those which cost less to develop. I've seen this suggestion made before, and I'm not against it, though I do wonder about the unintended consequences there. If you're providing patent lengths based solely on "cost of development," you've now created perverse incentives for inventors to spend more on invention than might otherwise be necessary, as they attempt to get the longest possible patent. We should want the invention process to be efficient as well, including seeking to minimize the cost of development where possible. Developing things cheaper is, in fact, one key area of innovation. So while I appreciate the concept behind the idea, I'd be worried about such a system having significant consequences that might, in fact, slow down innovation even further.

Tabarrok does, however, suggest an alternative way of determining the length of a patent that might avoid some of the unintended consequences above: letting companies self-select, based on certain trade-offs. For example, he suggests changing the level of scrutiny and the time to get a patent based on what length patent you're seeking. So, if you want a 20 year patent, then it's going to get tremendous scrutiny, a careful look at the prior art and a detailed look into whether the invention passes the non-obviousness test. However, if you're willing to just take a three year patent, then the standard of review is much lower, and the patent is granted much more quickly. For those innovating in rapidly changing fields, you could see them choosing this option, knowing that they'll get the patent faster, and that by the time the patent expires, the world will likely have moved on already.

Brito also makes what I believe is a mistake in suggesting (as Tabarrok implies) that where the cost of investment is higher, you necessarily need greater inducement to do the investment. Again, I appreciate where both are coming from, but I believe this is based on a false premise, that in order to innovate, innovators need a special extra inducement to invest. Studies have shown that this is rarely the case. Inventors invent most frequently not because of the inducement of a patent system, but (a) because they need the invention themselves and (b) because they see a market need, and recognize they can recoup the investment and more in the marketplace through selling a good product. Starting from the place of believing that innovators need "inducement" when the market and basic needs may already provide such incentives seems to fall into the trap of believing what patent system supporters always claim: that the patent system is necessary for such inventions and innovations.

This post is long enough, but the podcast (and the book) goes on to talk about some other policy issues that are important for encouraging greater innovation: fixing our incredibly broken education system and also fixing our broken immigration policy towards high-skilled labor. These are both issues that we've discussed around here as well, and Tabarroks' views are quite interesting, and worth checking out.

from the the-CBP:-everywhere-you-want-to-be dept

"How much spying on Americans is too much spying?" is the question no one seems to be asking, unless prompted by document leaks or a handful of legislators. Customs and Border Patrol (CBP) has had access to drones for a few years now, mainly using them to (you guessed it) patrol the borders. The immigration legislation that is working its way through Congress seeks to expand the CBP's drone armada.

As Congress considers a new immigration law that would expand the fleet of unmanned drones along the border, the agency in charge of border protection is increasingly offering the military-grade drones it already owns to domestic law enforcement agencies and has considered equipping them with “nonlethal weapons,” according to documents recently made public...

The flight logs provided by the agency show that it has become increasingly generous with its unmanned aerial vehicles. They have been used by the Federal Bureau of Investigation, the North Dakota Army National Guard, Texas Department of Public Safety and the United States Forest Service, among others.

Agencies that have used the 10 Predator drones owned by the Customs and Border Protection Agency have deployed them to investigate fishing violations, search for missing persons and inspect levees along the Mississippi River, among other things.

The uses listed here are acceptable, with the drones acting in an investigative fashion targeting specific areas or activities. The concern is more with the fact that each drone is capable of 20 hours of flight between refuelings and usage by other agencies doesn't seem to be subject to oversight.

Skeptics say the use of drones raises the prospect of ubiquitous monitoring, especially by law enforcement, and several states have already proposed measures to restrict their use by police.

“What concerns me is the lack of clear, transparent rules for domestic drone use,” said Representative Zoe Lofgren, a Democrat from Northern California, who recently introduced legislation to limit their use in domestic airspace. She said she was concerned about “the government’s increased interest in using drones for domestic surveillance and security, including the potential use of force. But the law today has weak requirements for individual privacy protection, transparency of drone use, and limitations on arming drones with weapons.”

According to the documents, CBP already appears to be flying drones well within the Southern and Northern US borders, and for a wide variety of non-border patrol reasons. What’s more — the agency is planning to increase its Predator drone fleet to 24 and its drone surveillance to 24 hours per day / 7 days per week by 2016.

The FBI's usage of these drones is also problematic. A few weeks ago, the director of the FBI, Robert Mueller, admitted the FBI was using drones for domestic surveillance, although he claimed it was done in a "very, very minimal, very seldom" way. Mueller said the issue was "worthy of debate and legislation down the road." One would think the debate and legislation should have preceded the drone usage, but this is how things are done, apparently. Get the fleet up and circling overland before agreeing to discuss it further at some undetermined point in the future.

[Mueller] said the FBI was in "the initial stages" of developing privacy guidelines to balance security threats with civil liberty concerns.

As for the CBP, its drone usage is escalating sharply.

CBP’s three years of daily flight logs detail when, where and how the agency flew its Predator drones on behalf of other agencies. These logs show a marked increase in drone flights over the years. In 2010, CBP appears to have flown its Predators about 30 times on behalf of other agencies, but this number increased to more than 160 times in 2011 and more than 250 times in 2012.

While CBP blacked out important information about dates, geographic location of flights, and, in most cases, agency names, these logs do provide some insights into the agency’s drone program. For example, we’ve learned that CBP conducted drone surveillance for law enforcement agencies ranging from the FBI, ICE, the US Marshals, and the Coast Guard to the Minnesota Bureau of Criminal Investigation, the North Dakota Bureau of Criminal Investigation, the North Dakota Army National Guard, and the Texas Department of Public Safety. These missions ranged from specific drug-related investigations, searches for missing persons, border crossings and fishing violations to general “surveillance imagery” and “aerial reconnaissance” of a given location.

Again, as is the case with the FBI, the CBP has provided no details on what it's doing to protect the privacy of American citizens. The EFF is calling for a halt of the CBP's drone flights until it answers a few questions on flight locations, privacy protection and its intentions to arm these drones, with lethal or non-lethal weapons.

Not every drone is bad news and they can serve some very important functions. Unfortunately, the agencies using these drones don't have a very solid track record when it comes to civil liberties. They've also demonstrated they'd rather get their drones airborne first, and sort out the impact on American citizens at some point in the future. It's a clear indication of how these agencies view the rights of Americans: as an annoyance to be dealt with only when forced to.

from the swing-and-a-miss dept

We've discussed before some of the problems with the ESRB rating convention. Even more aggravating is how those ratings are seen and used by the general public, often with a mighty disconnect between what parents say is important and how much effort they actually put into understanding what the ratings mean. But I'll forgive parents their contradictions because, hey, people are stupid, right? It's not like they're actually paid to understand every meticulous detail of everything in their lives. But you know who are? News organizations. They are supposed to both fact-check their stories and actually think through what they're putting on the air. A recent piece on Sacramento's ABC News10 station failed in spectacular fashion on both accounts.

First, the title splashed across the screen reads "KIDS GAME CONTAINS ADULT CONTENT." No, it doesn't. Like...at all. Out of the box, Little Big Planet 2 earned every bit of that ESRB "E for everyone" rating by being as kid-friendly and innocuous as it gets. The "problem" discussed in the clip is content created by gamers online, not what's contained within the game created by developers.

Second, the reporter's follow up question asked Barry White, who is apparently News10's "Game Guy," if he thought this stuff was created by sexual predators trying to diddle kiddies. What!?!? It's as though the reporters have never experienced the internet. If every person out there who created something graphic online in any way was a child predator, we'd all be in a hell of a lot of knee-deep-in-predators trouble.

Finally, what about that ESRB rating? The reporter asks White if the E rating gives parents a false sense of security. As White notes, that's only the case if those parents are illiterate chimpanzees, given the fact that the rating quite prominently notes that online interactions in the game can't be rated. In other words, you can't blame a game or its creator for what the strange and unwashed masses do with it online. Or in other, other words, the exact freaking opposite of everything said by the news team.

The money shot in this sexy story of stupid is at the very end, after the reporter talks about how parents should monitor their children's gaming and use the parental controls built within the consoles. The anchor's response?

"Speaking as a parent, my kids would probably know better how to get to the parental controls and configure them than me."

Yeah, well, exactly who looks like the idiot in that comment? Maybe if you're going to be the parent of a gamer, you should at least take a modicum of interest in how to parent a gamer. Here's a hint: that doesn't include defaming a nice, kid-friendly game on the news just because you don't want to understand stuff.

from the burning-a-hole-in-taxpayers'-pockets dept

The cyber-Pearl Harbor is upon us and the only way to defeat it is to sink our own ships at the first sign of invasion. This is the sort of thing that happens when the legislators and advisors with the loudest voices value paranoia over rational strategy. The Department of Commerce, aided by a tragicomic string of errors, managed to almost stamp out its malware problem.

The Commerce Department's Economic Development Administration spent almost half of its IT budget last year to remediate a cyber attack that barely happened.

EDA's drastic steps to limit the damage by shutting down much of the access to the main Herbert Hoover Building network ended up costing the agency more than $2.7 million to clean up and reconfigure its network and computers. The IG said the bureau destroyed more than $170,000 in IT equipment, including desktop computers, printers, keyboards and mice.

Also included in the mass destruction were cameras and TVs. It wasn't just cyber-paranoia that led to this hardware cull. There was plenty of miscommunication too, along with the usual doses of bureaucratic clumsiness. The Inspector General's report breaks down the chain of missteps, which all began with a response team member grabbing the wrong network info.

Yes. Much like "Reply" and "Reply All" will both get the job done, only one is the correct choice when firing off a devastating critique of your soon-to-be-former coworkers. The same goes for network logs. One shows you the correct info. The other "indicates" that more than half the EDA's computers are suffering from a malware infection.

DOC CIRT did try to get this fixed, pointing out the error to the handling team and re-running the analysis using the correct network log. Turns out, the original estimate was slightly off.

The HCHB network staff member then performed the appropriate analysis identifying only two components exhibiting the malicious behavior in US-CERT’s alert.

This new data in hand, a notification was sent out ostensibly to clear things up, but this too was mishandled so badly someone unfamiliar with bureaucratic ineptitude might be inclined to suspect sabotage.

DOC CIRT’s second incident notification did not clearly explain that the first incident notification was inaccurate. As a result, EDA continued to believe a widespread malware infection was affecting its systems.

Specifically, the second incident notification began by stating the information previously provided about the incident was correct. EDA interpreted the statement as confirmation of the first incident notification, when DOC CIRT’s incident handler simply meant to confirm EDA was the agency identified in US-CERT’s alert. Nowhere in the notification or attachment does the DOC CIRT incident handler identify that there was a mistake or change to the previously provided information.

Although the incident notification’s attachment correctly identified only 2 components exhibiting suspicious behavior—not the 146 components that DOC CIRT initially identified—the name of the second incident notification’s attachment exactly matched the first incident notification’s attachment, obscuring the clarification.

For five weeks, things went from bad to worse to comically tragic to tragically comic to full-scale computercide. Looking at its list (2 components), DOC CIRT asked the EDA to attempt containment by reimaging the infected items. Looking at its list (146 components), the EDA responded that reimaging half its devices would be "unfeasible." Taking a look at the EDA's list (from the first, mistaken network log analysis), DOC CIRT assumed the EDA had received additional analysis indicating the malware had spread, and changed its recommendations accordingly.

Finally, both departments were on the same (but entirely wrong) page and scaled up the response accordingly. A copy went to the DHS, stating that "over 50%" of the EDA's devices were infected. The DHS then accepted this without seeking independent confirmation. The NSA cranked out its own concerned report, quoting heavily from the DHS report (which was still in draft form), both of which were based on DOC CIRT's first erroneous report. This went undetected for over a year, until the OIG informed the involved agencies of its findings in December 2012.

The end result? The EDA and DOC CIRT worked together, attempting to head off a "severe" malware threat before it spread to other connected government computers. Despite gathering more information from outside consultants that indicated the malware was neither "persistent" nor a threat to migrate, the two agencies began destroying devices in May of 2012, finally stopping three months later when the "break stuff" budget had been exhausted.

Fortunately for the agencies, taxpayers and the surviving equipment (valued at over $3 million), the OIG's findings were brought to the agencies' attention before the fiscal year began and a new "break stuff" budget approved. All in all, the EDA spent over $2.7 million fighting a malware "infection" confined to two computers.

There's nothing in this report that makes the EDA look good. A chart on page 8 shows the EDA has persistently ignored the OIG's recommendations on agency computer security, with some assessments going back as far as 2006. It's no surprise it managed to (along with the Dept. of Commerce's response team) transform a 2-computer infection into a nearly $3 million catastrophe.

In April Florida Governor Rick Scott approved a ban on slot machines and Internet cafes after a charity tied to Lt. Governor Jennifer Carroll was shut down on suspicion of being an Internet gambling front -- forcing Carroll, who had consulted with the charity, to resign.

But, here's the problem. The bill's definitions section is a complete mess. You can see the full text (pdf) which contains cross outs and additions, but what comes out in the end is the following:

As used in this chapter, the term "slot machine or device" means any machine or device or system or network of devices... that is adapted for use in such a way that, upon activation... such device or system is directly or indirectly caused to operate or may be operated and if the user, whether by application of skill or by reason of any element of chance or any other outcome unpredictable by the user him or her, may....

(a) Receive or become entitled to receive any piece of money, credit, allowance, or thing of value, or any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value or which may be given in trade; or

(b) Secure additional chances or rights to use such machine, apparatus, or device, even though the device or system may be available for free play or, in addition to any element of chance or unpredictable outcome of such operation, may also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value. The term “slot machine or device” includes, but is not limited to, devices regulated as slot machines pursuant to chapter 551.

Note that I took out chunks of that definition to try to make it more readable and it's still a mess. The short version is that a slot machine or device is any machine or device by which someone can play a game of chance. That's any device with a web browser connected to the internet. Any one.

Almost immediately, around 1,000 internet cafes shut down, and now one of them, called Incredible Investments, is suing, seeking declaratory relief on a number of issues related to the law, which shut down their cafe. They go through one by one the problems with the law (and they are many), including the definition of the slot machine:

The definition of “slot machine or device” now contained in Fla. Stat. § 849.16, as amended, fails to adequately describe the prohibited machine or device such that a person of common understanding cannot know what is forbidden.

[....] As amended, Section 849.16, Florida Statutes includes a presumption that any device, system, or network like the Plaintiff’s computers that displays images of games of chance is an illegal slot machine.

The newly-enacted section 849.16(3), Florida Statutes, creates an evidentiary presumption that relieves the State of Florida of its burden of persuasion beyond a reasonable doubt of every essential element of a crime

There's a lot more in the actual lawsuit (embedded below). Can we just have lawmakers recognize, once and for all, that they're really bad at legislating technology?

from the about-time dept

After Aaron Swartz's suicide, Kevin Poulsen filed a Freedom of Information Act (FOIA) request to the Department of Homeland Security, asking for the Secret Service's file on Aaron Swartz, since it was the Secret Service that handled the bulk of the investigation. Aaron, himself, was a big user of the FOIA process, including retrieving his own FBI file concerning his earlier run-in with the authorities over downloading PACER material. So it seemed bizarre that the Secret Service denied Poulsen's request, "citing a FOIA exemption that covers sensitive law enforcement records that are part of an ongoing proceeding." Considering that the case was closed and Swartz was dead, that seemed like a ridiculous excuse.

Poulsen went through the official appeal process, which was ignored leading him to officially sue. In May, the government admitted that the law enforcement exemption no longer made sense, but then continued to do nothing about releasing the documents. However, Judge Colleen Kollar-Kotelly (a former FISA Court judge, and a name associated with various other high profile cases over the years) has now ordered the government to begin releasing the documents it has held about Aaron.

DHS claims that just last week it found a new stack of documents, and that it needs time to go through them all. The judge gave them a deadline of August 5th, but said it needs to already start releasing the documents it has already reviewed.

Dutch public libraries are bringing a test case to court. The test case is about the right to lend e-books in public libraries. The public libraries want e-lending to be included in the copyright-exception for public libraries. The association of public libraries therefore take legal action against Stichting Leenrecht, a foundation collecting the lending fees.

The Dutch Copyright Act contains a copyright limitation that allows public libraries to lend physical copies of books. The question was raised whether this exception included also the lending of e-books. If that were the case, it would be a great advantage for public libraries, because they would not have to ask the permission of the copyright holder of the e-book.

The immediate stimulus for the public libraries' move is a report presented by the Dutch Minister of Education to the Dutch Parliament, which looked into the question of lending rights. Unfortunately, the minister came to the view that the lending exception in Dutch copyright law only applied to physical copies of books. The Dutch libraries hope the courts will rule that it should apply to ebooks too. Since this seems to be the first such case anywhere, its outcome will doubtless be watched closely.